October 15, 2009

Well, that would be the argument of Ronald D. Rotunda and J. Peter Pham who inanely write in tomorrow's Washington Post that President Obama is constitutionally barred from accepting the Nobel Prize:

An opinion of the U.S. attorney general advised, in 1902, that "a simple remembrance," even "if merely a photograph, falls under the inclusion of 'any present of any kind whatever.' " President Clinton's Office of Legal Counsel, in 1993, reaffirmed the 1902 opinion, and explained that the text of the clause does not limit "its application solely to foreign governments acting as sovereigns." This opinion went on to say that the Emolument Clause applies even when the foreign government acts through instrumentalities. Thus the Nobel Prize is an emolument, and a foreign one to boot.

One problem: the hero of the first Gulf War, Gen. Normon Schwarzkopf, received an honorary Knighthood from Queen Elizabeth (which technically makes him a "Knight of the British Empire") in May of 1991 while still on active duty. According to Rotunda and Pham's argument, this violated all kinds of constitutional constraints, Emolument Clause notwithstanding. He retired at the end of August 1991, meaning the General was clearly a foreign agent for the British Empire for approximately 3 months, because how can you be a Knight and an American General at the same time? Where would his loyalty really be? Under this Op-Ed's logic, Schwarzkopf's retirement South should have sent him to the Naval Brig at Charleston, not the golf courses of Florida.

Another government luminary who should have fallen victim to the Emolument Clause as the authors of the Op-Ed envision it? Alan Greenspan, who received his Honorary British Knighthood in 2002 while still serving as the Chairman of the Federal Reserve. How could President George Bush sit there idly as the Chairman
overseeing America's treasury was more a servant of Britain's Queen Elizabeth
than the Commander-in-Chief of the United States? I'm shocked that the entirety of America's money supply didn't end up alongside the Crown Jewels at the Tower of London. But apparently, there was concern in Conservative circles over the legality of Greenspan's ascension in the British Empire. According to Newsmax, the Federal Reserve's General Counsel cleared Greenspan under the Emolument Clause:

[N]o person holding any Office of Profit or Trust under them [the
United States], shall without the consent of Congress, accept of any
present, Emolument, Office, or title, of any kind whatsoever, from any
King, Prince or foreign state

Congress gave its consent to the
acceptance of certain gifts and decorations in the Foreign Gifts and
Decorations Act (originally enacted in 1966)....The Act defines
"decoration" to include "an order, device, medal, badge, insignia,
emblem or award." The Department of Justice has ruled that an honorary
knighthood is an "order" as permitted by the Foreign Gifts and
Decorations Act.

Even Conservatives acquiesced that a Knighthood was not in violation of
the Emolument Clause. I assume the same logic applies to a Nobel Prize.

The logic behind Schwarzkop's knighthood does not apply to President Obama's Nobel, because the Nobel carries with it a cash award. Obama is not barred from accepting the Prize, but to be constitutionally kosher he needs the consent of Congress. It is unclear to me whether the prize money belongs, legally, to him or to the government.

This whole issue is obviously pretty much irrelevant, and a bit silly to talk about, but since we're talking about it there's an argument to be made that Obama's Nobel Peace Prize actually is not subject to the same logic as the knighthoods you mention. The text of the Foreign Gifts and Decorations Act (5 USC §7342(d)) reads, "The Congress consents to the accepting, retaining, and wearing by an employee of a decoration tendered in recognition of active field service in time of combat operations or awarded for other outstanding or unusually meritorious performance, subject to the approval of the employing agency of such employee." Arguably, if the Nobel is not actually being awarded for some "outstanding or unusually meritorious performance," a proposition that many Americans would no doubt agree with, this Act does not permit Obama to accept it. Obviously this issue will never see the inside of a courtroom, and even if it did I suspect they would rule in Obama's favor, but there you go.

Fred Hiatt redefines the term "jumping the shark". Should we call it "pulling a Hiatt" - i.e. making an argument so transparently stupid, wingnutty, and batshit insane that one's professional credibility dissolves instantaneously?

You're right this is Inane and Petty. First, the institute that awards the Nobel prize is a "a private entity" so there would be no restriction under that law because it does not stand as a foreign entity under the law. Second, , Obama and Vice President Joe Biden are expressly exempt from all of these rules, Third, § 7342. Receipt and disposition of foreign gifts and decorations covers such awards, and lastly are you going to consider Gordon Brown giving Obama a pen holder a violation?

Agree with the comments here, the nobel comittee has nothing to do with the government nor earns money from them, it is a 100% private entity. I liked the board a lot and hope to be here for more time, will bookmark this site for sure.

actually the committee in charge of awarding the peace prize works for the norwegian parliament.

"The Norwegian Nobel Committee (Norwegian: Den norske Nobelkomité) awards the Nobel Peace Prize each year. Its five members are appointed by the Norwegian Parliament and roughly represent the political makeup of that body."

the other nobel prizes are awarded by non government organizations in norway like the academy of sciences etc.

obama can take the decoration but not the cash money since it exceeds $100. he could have been awarded any of the other nobel prizes and kept the money, since those prizes are not given by a foreign government.

the reason to prohibit government employees from accepting gifts from foreign governments is to prevent bribery. the law was passed in 1967, after wilson and roosevelt got their nobel peace prizes.

obama can either politely decline the cash or accept it and turn it over to the treasury (in 60 days after accepting it).

he's stated he will turn it over to charity but this is as illegal as just keeping the money himself. it belongs to the treasury.

it's funny the norwegian government just sending money into the black hole of the american treasury.

i think the reason people care about this is because it's the law. he can get congress to change the law if he wants but until that happens he has to obey it, same as everyone else.

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